State ex rel. Villari v. City of Bedford Heights

Locher, J.,

dissenting. I have two concerns with the majority opinion this day. Accordingly I feel compelled to dissent.

The first concern involves our resolution of a mandamus action when facts are in dispute. The majority herein, alluding to the minutes of the January 25, 1982 council meeting as one of several “facts,” concludes that the relator’s employment terminated on March 1, 1982. Such an essentially evidentiary review to resolve disputed “facts” is an anathema to the well-established doctrine that a writ of mandamus is an extraordinary remedy. Such a remedy, as a rule, will not be granted if a plain and adequate remedy *226exists at law. State, ex rel. Laramie Corp., v. Cleveland (1981), 65 Ohio St. 2d 35 [19 O.O.3d 227]; State, ex rel. Square, v. Planning Comm. (1980), 64 Ohio St. 2d 128 [18 O.O.3d 362]. As we noted instate, ex rel. Bossa, v. Giles (1980), 64 Ohio St. 2d 273 [18 O.O.3d 461], disputes “over the number of hours of leave due might not be appropriately decided by an action in mandamus.” Id. at 276. Thus, the findings of fact made by this court allows relator to circumvent filing an action at law in money damages — the procedurally proper means of ascertaining and resolving the disputed issues of fact herein. While I sympathize with the desire of my brethren to expedite this matter, in the interests of judicial economy, such economizing is wholly inconsistent with this court’s previous view of mandamus.

It is readily apparent that the amount of recovery, in the absence of our action as a trial court, is not established to any degree of certainty. Thus the majority‘would maintain a position inconsistent with a host of our recent decisions. Monaghan v. Richley (1972), 32 Ohio St. 2d 190 [61 O.O.2d 425], syllabus; State, ex rel. Martin, v. Columbus (1979), 58 Ohio St. 2d 261 [12 O.O.3d 268], paragraph one of the syllabus; State, ex rel. Crockett, v. Robinson (1981), 67 Ohio St. 2d 363, 365 [21 O.O.3d 228].

My second concern involves the majority’s use of State, ex rel. Evans, v. Moore (1982), 69 Ohio St. 2d 88 [23 O.O.3d 145], to justify the application of R.C. 9.44. For the reasons articulated in my dissent in Moore, supra, at 95-97, I do not believe that the instant application of R.C. 9.44 based upon the Moore■ decision is appropriate.

For the reasons set forth hereinabove I must therefore dissent.

Holmes, J., concurs in the foregoing dissenting opinion.